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Petitioner: ABDUR RAZZAQ MALIK VS Respondent: THE WATER AND POWER DEVELOPMENT AUTHORITY JUDGMENT
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain Title:ABDUR RAZZAQ MALIK vs THE WATER AND POWER DEVELOPMENT AUTHORITY
JUDGMENT
Reported As: PLD 1973 Lahore 188 Result: Petition accepted Judgment JUDGMENT Abdur Razaaq was appointed as Junior Accountant on the 30th of January 1960 by order of the Chief Engineer, Re---Settlement Organisation, WAPDA. On 9-9-64 he was promoted as Accountant by order of the Water and Power Development Authority itself. On 26-4-69 he was dismissed by the order of the Chairman and it is this order which is the subject-matter of the present writ petition. The reasons which led to his dismissal follow- 2. On 8-9-66 Manzoor Hussain, Junior Accountant com--plained to the Chief Accountant listing a number of charges against the petitioner. The petitioner was asked to submit an explanation which was duly submitted on 23-9-66. On 29-10-1966 the Chief Accountant issued him a charge-sheet to which reply was given on 7-1 t-66. Consequently one Faiz Rasul, Comptroller of Indus Basin Projects was appointed Inquiry Officer. As a result of this inquiry the petitioner received an order from the Authority on 16-3-67 administering a severe warning to him. The order further required that the warning be placed on the Character Roll of the petitioner. Thus the charges that were in--cluded in the charge-sheet were disposed of and the petitioner was suitably punished for that. On 11-11-67 Mr. Ramiz Ahmad Malik, Project Director, wrote a demi-official letter to the Chief Accountant against the petitioner. He inter alia objected to the issuance of a mere warning to the petitioner. He added some now charge at this stage. On 17-4-(8 the Chief Accountant called upon the petitioner to sub--mit a fresh explanation as, according to the former, the matter required re- examination. On 24-4-68 the petitioner submitted the explanation and on 26-7-68 he was charge- sheeted again under the order of the Authority.
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On 16-8-68 the Authority appointed Saeed Ahmad as Inquiry Officer who duly held. An inquiry and submitted a report exonerat--ing the petitioner from the charges except on a very small matter. His report is attached as Annexure U' to the writ petition. It was at this stage that the Chairman took upon himself to deal with the mater. A further clarification was asked for from the inquiry officer who complied with the order on 9-1-69. On 1-3-69 the Chairman issued a show-cause notice to the petitioner on two out of the four charges dealt with by the Inquiry Officer in the report referred to above. On 25-3-69 a reply was submitted by the petitioner. He was also heard personally by the Chairman. On 26-4-69 an order dismissing the petitioner was communicated by the Chairman to him. This is the impugned order. 3. Learned counsel for the petitioner raised the following points before me- (i) Section 18 of the Water and Power Development Autho--rity Act empowers only tae Authority to take disciplinary action. Therefore, the order of the Chairman suffers from a. Jurisdictional defect. (ii) There were two sets of rules in the year 1966, namely, (a) WAPDA Account Service Rules ; and (b) West Pakistan WAPDA Employees Efficiency and Disci--plinary Rules. According to the first set of rules only the Authority could take any action while according to the second set only the appointing Authority could take any action. These rules were duly followed in the first inquiry referred to above but in the second inquiry though the Inquiry officer was appointed by the Authority and the charge-sheet was also served by it, the action of dismissal from service was taken by the Chairman , and not from the Authority. (iii) Disciplinary action had already been taken against the petitioner on the same charges by giving him a warning. He could not be vexed twice for the same cause. (iv) The show-cause notice was limited to only two of the four charges reported upon by the Enquiry Officer. The order of dismissal however is based upon all the four charges. (v) The Inquiry Officer who was appointed by the Authority and who held an Inquiry Into the charges framed against the petitioner having exonerated him completely of all the allega--tions against him it was not open to the Chairman to sit in judgment over his report, to set aside a part of it and to dismiss the petitioner quite contrary to the recommendations of the Inquiry Officer. (vi) The finding of the Chairman ignores the important evidence and misreads the charge. 4. The report dated September 8, 1966 from Manzoor Hussain which appears as Annexure 'D' to the writ petition contains a number of charges- (i) The petitioner opened an account in July 1965 with the National Bank of Pakistan, Mirpur, without any authority. The interest due on the short terms Deposit Account was directed by the petitioner to he credited to a separate account titled "Project Accountant". This was done without autho--rity by him. The cheques received from the Accountant General, Azad Kashmir drawn in favour of the Project Accountant were converted into a STD Account called New Mirpur Construction Account. This was done with a view to enabling the petitioner to draw money by issuing cheques under his own signatures. (ii) During the same period series of cheques which found no entry in WAPDA records have been encashed from the Muslim Commercial Bank and it was found that in connivance with the Manager of the Muslim Commercial Bank the petitioner was secretly converting current account balance into STD and pocketing the interest thereon. (iii) Similar STD account was opened by the petitioner in Habib Bank also. (iv) The petitioner was also converting part amounts from current accounts into interest bearing deposits for which purposes the current account balance was kept unduly high and that all this interest was being credited to Re-Settlement Organisa--petition A/C/II from which Mr. Malik was drawing money on cheques for personal use as the cheque book was with him.
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(v) The petitioner thus misappropriated an estimated amount of Rs. 50,000 on account of interest accrued on STD accounts, either opened by him secretly by converting part amounts from current accounts with MCB or STD account appearing in official books but terms of deposit were not kept on official records. 5. The charge-sheet that was issued to the petitioner on account of this report informed him that he had boon found to be responsible for the following Irregularities- This charge-sheet is Annexure 'H' to the writ petition. The charges are as follows- "(a) Not prescribing the proper accounting system for separate accounting of STD/Fixed Deposits in the Cash/Bank Book. (b) Not Issuing Instructions to your Assistant Accountants/ Junior Accountants to ensure that the credits for Interest accrued on STD/Fixed Deposits received from the Banks should be checked before the same are posted In the Bank Books. (e) Issuing verbal instructions to Muslim Commercial Bank for placing funds in STD/Fixed Deposits, thus preventing the Accounts staff to know the exact position of the Deposit Accounts and to watch the credits for interest accrued thereon. (d) Not obtaining CA(W')s orders as per para. 8 of the Accounting Manual (Cash Section) for opening of Accounts with the Muslim Commercial Bank and the Habib Bank Ltd., on 17-6-1963 and 27-12-65 respectively." A letter Issued by the Chief Accountant appears as Annexure 'O' to the writ petition which runs as follows: - "Your explanation dated 7-11-66 has been carefully considered and the Authority have passed the following orders:- Mr. Malik should be administered a severe warning and the warning should be placed on his Character Roll. Please acknowledge the receipt of this letter." This letter is dated the 15th of August 1967, and the explanation dated 7-11-66 referred to In it which appears as Annexure 'I' to the writ petition related to the charges mentioned above. 7. This matter was, therefore, brought to an end and became a past and closed transaction. 8. On the 1st of March 1968 as has already been indicated above Ramiz Ahead Malik sent a letter to the Chief Accountant stating that Mr. A. R. Malik had temporarily embezzled large amounts to the tune of Rs. 67,000.00 from Account No. II of Resettlement Organisation and he wag of the opinion that the petitioner was unfit for the job of Project Account. The letter referred to the same charges in respect of which a warning had already been administered. Nevertheless on the 17th of April 1969, Muhammad Hayat, Chief Accountant sent a letter to the petitioner requiring him to send his explanation in respect of the following irregularities listed by him--- "(i) Account No. II was opened by you under your single signature without the knowledge of the Project Director; (ii) Account No. II was operated by you alone. This fact is reported to have been admitted by the Manager. Muslim Commercial Bank in his letter No. MP/732/GEN/66 dated 24-9-66, copy enclosed. (iii) The Muslim Commercial Bank submitted a Bank state--ment for the month of December 1965 for Account No. II, a copy of which is enclosed. This statement shows that an amount of Re. 2,000 was withdrawn by you from Account No. II, under cheque No. 364210, dated 4-12-65 and No. 364211 dated 27-12-65; (iv) A statement of interest accrued on the special notice Deposits/Fixed Deposits and credited to Resettlement Organization's Account No. II was supplied by the Bank during September 1966. According to this statement the interest which should have accrued up to November 1965 amounts Rs.70,200.39 whereas in the Bank Statements for December 1965, referred to in item (!Ii) above the
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opening balance is shown Re. 15,511.98. This shows that the sum of Re. 64,869.41 (Re. 70,200.39- 15,511.98) was withdrawn by you from the Bank and temporarily misappropriated." 9. He was also required to explain his conduct in respect of the following as well- "(1) Under Chief Accountant's Order Aun Muhammad, Divisional Accountant was posted with the Executive Engineer, Reservoir Division and Malik Mumtaz, Accounts Assistant who was working against this post was posted in Project Accountant's Office. However, Mr. A. R. Malik did not implement these orders. He kept Aun Muhammad, Divisional Accountant, in his office and allowed Malik Mumtaz, Accountant Assistant, to continue to work against the post of Divisional Accountant in Reservoir Division. Mr. Aun Muhammad was marking his presence daily in the office of the Executive Engineer, Reservoir Division and worked in the Project Account's Office similarly. Mr. Mumtaz Malik was marking his presence in the Project Accountant's Office and was working in the Reservoir Division. This irregularity came to my notice when a complaint was received in Chief Accountant's Office and I was asked to give my comments. (2) The Authority's instructions were received for recovery of Re. 1,200.00 from Ex-Medical Officer, Mr. A. B. M. Ghulam Sarwar for receiving non-practising allowance. The latter obtained a stay order for this recovery from a local civil Court and the Project Accountant came to me with that stay order. I wrote back on the back of the said order that recovery should be held in abeyance and the leave salary and other dues payable to Capt. A. B. M. Ghulam Sarwar should not be released. Capt. A. B. M. Ghulam Sarwar obtained a copy of exact remarks made by me and applied to the Civil Judge for taking action against the Project Director for contempt of Court. Accordingly I have received a notice from the civil Court to give reasons for withholding payments of Capt. A. B. M. Ghulam Sarwar. My inquiries reveal that at the time of Project Accountant's coming Capt. A. B. M. Ghulam Sarwar was sitting is his office and the Doctor obtained a copy of the remarks from the Project Accountant himself. (3) Mr. Saif-ul-Islam Office Assistant who is working under the Superintendent Administration got his application forwarded for transfer to Tarbela from the Project Accountant without any reference to Project Director. I was surprised when this matter came to my notice that the Project Accountant should have forwarded the application of a clerk who was not concerned with him in any official capacity." 11. A charge-sheet listing the following charges was then served upon the petitioner under orders of the Chief Accountant on 6th July 1968, a copy of which is Annexure 'S' to the writ petitions- "(i) Account No. II was opened by you under your single signatures without the knowledge of the Project Director (ii) Account No. II was operated by you alone. This fact is reported to have been admitted by the Manager, Muslim Commercial Bank in his letter No. MP/732/GEM/66, dated 24-9-1966. (iii) The Muslim Commercial Bank submitted a Bank statement for the month of December 1965 for Account No. II. This statement shows that an amount of Rs. 2,000 was withdrawn by you from Account No. II under Cheques No. 364210 dated 4-12-65 and No. 364211 dated 27-12-1965 ; (iv) A statement of interest accrued on the special Notice Deposits/Fixed Deposits, and credited to Resettlement Organization's Account No. 11, was supplied by the Bank during September 1966. According to this statement the Interest which should have accrued up to November 1965, amounts to (Rs. 70,200.39) whereas in the Bank statement for December 1965, referred to item (iii) above, the opening balance is shown as Rs. 15,511.98. This shows that the sum of Rs. 64,869.41 (Rs. 70, 200.39-15,511.98) was withdrawn by you from the Bank and temporarily misappropriated." 12. A comparison would show that charges Nos. I and 2 listed in the charge-sheet Annexure 'S' and charge No. (d) of the first charge-sheet referred to above are absolutely Identical. 13. The show-cause notice issued to the petitioner as result of the second charge-sheet shows that it was only in respect of charges Nos. 1 and 2 referred to above. It is, therefore,) quite clear that he
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was being sought to be punished for the second time in respect of the same charges having already been administered a severe warning by the authority as a result of the) inquiry. 14. The order of the Authority, could not be overruled bye the Chief Accountant or anybody else for the matter of that and, therefore, on the face of it the second show-cause notice and inquiry was hit by the maxim nemo debet Ili vexarl prouna ei eadem causa i.e., it is a mile of law that a man shall not be twice vexed for one and the same cause. On page 219 of Broom's Legal Maxims it has been stated that- "The question whether a defendant is being vexed again for the same cause of action depends, not upon technical consideration, but upon matter of substance. One test of identity is that the same evidence will support both actions." Similarly on page 223 we find- "It is the foundation of the special pleas of autrefois acquit and autrefois convict. When a criminal charge has been once adjudicated upon by Court of competent jurisdiction that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded in bar of a subsequent prosecution for the same offence, -whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or the consequences of the offence." It is, therefore, clear that this principle is equally applicable to civil as well as to criminal proceedings. In whichever category a disciplinary inquiry against a civil servant may, therefore, be classed, the result of it would be that once an employee has been punished by competent authority the matter cannot be reopened to his detriment. The second charge-sheet, therefore, could not form the basis of the punishment meted out to the petitioner as he bad been already punished for it. 15. In para. 1 of the reply to the second charge-sheet (copy Annexure 'Y') the petitioner made it absolutely clear that he had already been punished by the Authority itself after a departmental inquiry in respect of these two charges by the administration of a severe warning and a fresh inquiry was, therefore, not competent. 16. Another interesting factor is that the order issued by the Chairman dismissing the petitioner with immediate effect on 26-4-1969 (copy Annexure 'Z') shows that all the four charges were taken into consideration although two of them had not formed the subject-matter of the charge-sheet at all. In respect of the other two charges, therefore, the petitioner was punished without having been given an opportunity to show-cause which Is a mandatory requirement of rule 5 of the Efficiency and Discipline Rules. 17. Section 18 of the Water and Power Development Authority Act, 1958, provides that the Authority shall prescribe the procedure for appointment and terms and conditions of service of its officers and servants and shall be competent to take disciplinary action against its officers and servants. 18. Learned counsel for the Authority relied upon Resolution No. 43 of the Authority (copy Annexure 'RI') to show that in respect of making of appointments, power had been delegated by the Authority to the Chairman or a Member. Even if it be accepted for the sake of argument that this was possible d under the law, this did not confer upon the Chairman or the Member the power to dismiss a person in the employ of the Authority because Resolution No. 43 does not delegate any such poser to them. 19. It was submitted by learned counsel for the petitioner that since the Enquiry Officer had been appointed by the Authority and he had exonerated the petitioner the Chairman could not disagree with him. It is difficult for me to see eye to eye with learned counsel for the petitioner on this point because the report of the Enquiry Officer cannot be considered to be p binding and is only for consideration by the Appointing Authority with a view to making -up it mind as to whether it will or will not take action. Ordinarily speaking there i9 no reason why the appointing Authority will not
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agree with the report of the Enquiry Officer appointed by it but if for reasons it finds that it cannot, there is nothing to stop it from doing so. 20. 1 may also refer to rule 4(2) of the Efficiency ands Discipline Rules of 1966 which are applicable to WAPDA employees which lays down that no Authority subordinate to that by which an employee was appointed shall be competent o to impose a penalty on him. We have already seen that the petitioner was promoted as Accountant on 9-9-64 by order of the Authority itself. His Appointing Authority was, therefore, WAPDA and that was the only body competent to take disciplinary action against him. 21. A Private Corporation, so I am told, cannot be directed to continue the engagement of an employee it dislikes. The judg--ment of the Supreme Court in Rustam A.I v. E.P.I.D.C. (PLD 1966 SC 848) has been cited, as usual. There is an observation at page 803 of this report that:- "He was an employee of a statutory corporation. The true character of an officer and employee of such a statutory Corporation has beers pointed out by this Court in the case of The Lahore Central Co-operative Bank Limited v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210. One of the questions in the above case was whether the concerned Manager of the Bank was entitled to a writ for alleged wrongful dismissal from service. The learned Chief Justice after quoting a passage from Hals-- bury. Paragraph 162 in the monograph on 'Crown Proceedings' observed, The Superior Courts in England have not found it possible to extend the scope of mandamus to restoration to office in private corporations. All the offices mentioned in the list contained in the quotation above appear to be of a public nature and to have a quality which is entirely foreign to that belonging to the post of Commercial Manager in a Co-operative Bank. That post was clearly of a contractual nature falling within the category of employment and having nothing of true character of a statutory or corporate office'. It is, therefore, clear that a writ is not a proper remedy in a case of this type in our jurisdiction." The quotation from Pir Saijullah Shah's case leaves no manner of doubt that their Lordships concerned themselves with the scope of mandamus. What I am required to do in the present case is to just grant a declaration that the impugned order i9 without lawful authority and of no legal effect, and not issue a mandamus. I am therefore, not to be guided by the considerations applicable to the latter. It will, however, be interesting to note the trend of thinking to the Supreme Court even on the question of mandamus. The following is a sampling from a number of cases disposed of by the superior Courts in this country on this point. "In the absence of proof that any statutory duty was Involved or that any legal right was being enforced or that the perfor--mance of a public duty was being claimed, it is clear that a mandamus or an order of mandamus could not have issued, consistently with the relevant practice and precedent." It follows, therefore, that if it can be shown that a statutory duty is involved or that any legal right is being enforced or that the performance of a public duty is claimed mandamus can issue. This observation was adverted to in The Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah reported in the same volume at page 210. "Even upon the basis of the narrow requirements that there should be either a statutory duty involved, or a legal right to be enforced or the performance of a public duty which was attracted by the circumstances. It is easily possible to regard the admission of a duly qualified Director to the Board of Directors of a public company such as the West Punjab Steel Corporation Limited, as being within the scope of a writ. No statutory duty is involved, but it is undeniable that a duly qualified Director has a legal right to sit on the Board of Directors and that this is a right which is of the greatest importance to the public interest, in the field of the operation of public joint stock companies under Company Law." ------..'Therefore, it is conceivable as a public duty bearing upon
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the conduct of the members of a Board of Directors that they shall admit to their number every person who is qualified to be a Director of the Company'." PLD 1963 SC 179) the Court reiterated its decision in Pir Saif Ullah Shah's case quoted above. PLD 1966 SC 445) it was reiterated that- "The position in regard to future applications for writs, therefore, is that they lie only on the ground that any one or more of the laws mentioned in Article 4 or any other right reserved by the Laws (Continuance in Force) Order has been contravened. In the present case the Co-operative Societies Act was one of the Laws so continued in force, but under it there was neither any statutory duty cast on a registered Co-operative Society nor was any statutory right conferred upon any one to secure compliance with appellate orders of Government under the Act or the rules framed thereunder." The passages already quoted above from the case of Pir Saif Ullah Shah and Mehrajuddin were again referred to with approval in this case also. PLD 1967 Lah. 408) the Lahore High Court held that- " Before we part with this case, we would like to enter a caveat, we should not be understood as saying that a Municipality or another corporate body is absolutely immune from the writ jurisdiction in the matter of grant of redress to an aggrieved employee even if the impugned order suffers from an inherent vice and is for that reason void ab initio. Such a case would be an exception to the general rule laid down in the cases of Zainul Abidin, Pir Saifullah Shah and Faiz Ahmad. Indeed the cases of Maqbool Elahi v. Abdur Rehman Khan, noticed already furnishes a remarkable example of both the general rule and the exception. In that case the Supreme Court issued a direction in the nature of mandamus restoring three directors (who were appellants before their Lordships) for their rightful place in the Board of a company, in place of the three co- opted new Directors whose co-option was held to be illegal." PLD 1967 Lah. 1251). At page 1281 the learned Judge who decided the case held that- "To sum up the discussion, in this country on the language of Article 98 of the Constitution, as a matter of construction only a High Court of a Province may, provided the other conditions are fulfilled, make an order directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by, law to do; or declaring that any act done or proceeding taken to the Province by such a person or local authority has been done ate…
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